State v. Lishan Wang

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STATE OF CONNECTICUT v. LISHAN WANG
(SC 19637)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.*
Argued May 5—officially released September 13, 2016
Mark Rademacher, assistant public defender, for the
appellant (defendant).
Nancy L. Walker, deputy assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and Eugene Calistro, Jr., senior assis-
tant state’s attorney, for the appellee (state).
Opinion
PALMER, J. The issue that we must resolve in this
appeal is whether the trial court properly granted the
state’s motion to forcibly medicate the defendant, Lis-
han Wang, in order to restore his competency to stand
trial. The defendant was charged with murder and vari-
ous other offenses in connection with the shooting
death of Vajinder Toor in the town of Branford on April
26, 2010. Over the next several years, the defendant
was found incompetent to stand trial, restored to com-
petency, and then found incompetent again. After the
second finding of incompetency, the trial court con-
ducted evidentiary hearings on the question of whether
the defendant should be forcibly medicated. The court
ultimately concluded that the state had established by
clear and convincing evidence that forcible medication
of the defendant would not violate his federal due pro-
cess rights under the test set forth in the decision of
the United States Supreme Court in Sell v. United States,
539 U.S. 166, 180–81, 123 S. Ct. 2174, 156 L. Ed. 2d
197 (2003), and ordered that the defendant be forcibly
medicated. This appeal followed.1 The primary claim
that the defendant raises on appeal is that the trial court
incorrectly determined that it was ‘‘substantially likely’’
that forcibly medicating him would restore his compe-
tency to stand trial, as that phrase is used in Sell. Id.,
181; see id. (to order involuntary administration of drugs
for trial competence purposes, court ‘‘must find that
[the] administration of the drugs is substantially likely
to render the defendant competent to stand trial’’). We
disagree and affirm the decision of the trial court.
The record reveals the following undisputed facts and
procedural history. On April 26, 2010, Toor, a physician,
was shot and killed outside his residence in Branford.
Later that day, the defendant, who also was a physician,
was arrested and charged with Toor’s murder, the
attempted murder of Toor’s wife, carrying a pistol with-
out a permit and possession of a weapon in a motor
vehicle. On September 28, 2010, the trial court, Fasano,
J., found the defendant incompetent to stand trial but
restorable, and ordered that he be admitted to the Whit-
ing Forensic Division of Connecticut Valley Hospital
(Whiting) for treatment. Thereafter, Judge Fasano
found that the defendant had been restored to compe-
tency and granted his motion to represent himself.
On January 30, 2015, Thomas Ullmann, the supervisor
of the Office of the Public Defender for the judicial
district of New Haven, filed a motion for the appoint-
ment of counsel, in which he requested that the trial
court revoke the defendant’s status as a self-repre-
sented party and appoint a public defender to represent
him on the ground that the defendant was incompetent
to represent himself. In support of this claim, Ullmann
referred to hundreds of motions that the defendant had
filed in the trial court, including at least seventy in
which the defendant had sought permission to obtain
information from Kingsbrook Jewish Medical Center
(Kingsbrook) in Brooklyn, New York, where the defen-
dant had worked for two years with Toor until the
defendant was terminated in May, 2008. In other
motions, the defendant claimed that he had been wrong-
fully terminated by Kingsbrook because of false accusa-
tions made by Toor, claimed that the defendant, not
Toor, was the real victim, and questioned the identifica-
tion of Toor’s body by the Office of the Chief Medical
Examiner. After an evidentiary hearing, the trial court,
O’Keefe, J., found the defendant incompetent to stand
trial and ordered that he again be admitted to Whiting
for evaluation and treatment.2 The trial court also
ordered that a public defender represent the defendant
until it could be determined whether treatment could
restore him to competency.
On September 14, 2015, the trial court conducted a
second competency hearing for the purpose of
determining whether the defendant had been restored
to competency. Mark S. Cotterell, a psychiatrist and
forensic monitor employed by Whiting, testified at the
hearing that he had been involved in the evaluation of
the defendant from late 2010 until early 2011 during
the defendant’s first admission to Whiting. After the
defendant was sent back to Whiting in April, 2015, Cot-
terell again had been assigned to evaluate him and to
prepare a report. In performing this task, Cotterell met
repeatedly with the defendant and with members of his
treatment team, and reviewed his treatment records.
Cotterell testified that the defendant had been diag-
nosed with ‘‘unspecified schizophrenia spectrum and
other psychotic disorder.’’ In Cotterell’s opinion, the
defendant was not competent to stand trial but could
be restored to competency. Cotterell also testified that
the least restrictive placement that would still be effec-
tive would be for the defendant to remain at Whiting
as an inpatient. Cotterell further testified that there
were medications that could help restore the defendant
to competency, but the defendant did not believe that
he had any psychiatric disorder and did not want to
take any medications. According to Cotterell, studies
showed that the success rate of such medications was
‘‘anywhere from the mid-50 percent range up to about
70 percent.’’ Cotterell also testified that, ‘‘based on our
clinical experience, we can probably get at least . . .
that much, if not sometimes more, simply because the
research doesn’t always include longer term treatment.’’
At the conclusion of the hearing, the trial court found
that the defendant was incompetent to stand trial and
that the ‘‘normal treatment’’ that Cotterell had described
was ‘‘not going to work here.’’3 The trial court appointed
Gail Sicilia, a psychiatric advanced practice registered
nurse employed by Yale University, as the defendant’s
health-care guardian pursuant to General Statutes § 54-
56d (k) (3) (A). Finally, the trial court ordered that
Sicilia prepare a report setting forth her findings and
recommendations concerning the forced administra-
tion of antipsychotic medication to the defendant.
On October 26, 2015, the trial court held an eviden-
tiary hearing on the question of whether the defendant
should be forcibly medicated. Cotterell testified at the
hearing that, despite the ongoing efforts of the staff at
Whiting, the defendant had not made any substantial
progress toward competency since being admitted to
Whiting in April, 2015.4 Cotterell recommended that the
defendant be treated with the antipsychotic medica-
tions Olanzapine and Ziprasidone. Cotterell testified
that these medications had ‘‘a substantial likelihood of
treating the symptoms’’ that the defendant was experi-
encing, ‘‘based on our clinical experience dealing with
these kinds of patients and these kinds of medication.’’
In addition, the published research indicated a ‘‘greater
than 50 percent chance . . . that [those medications
will result] in a substantial improvement in the
[patient’s] clinical state.’’ Cotterell wrote in a memoran-
dum documenting the proposed medication regimen
for the defendant that the ‘‘[n]otable potential side
effects’’ of Olanzapine are dizziness, dry mouth, joint
pain, constipation, orthostatic hypotension,5 and tachy-
cardia, and that there is ‘‘some risk’’ of weight gain,
hyperglycemia or sedation. A notable side effect is one
that is either frequent or significant, or both. The ‘‘nota-
ble potential side effects’’ of Ziprasidone are dizziness,
stiffness, sedation, nausea, dry mouth, skin rash and
low blood pressure, and there is a ‘‘low [risk]’’ of weight
gain or sedation with long-term use. Cotterell testified
that ‘‘a lot of clients who use these medications . . .
don’t actually experience sedation’’ and that sedation
was ‘‘not something that [one] would expect to be uni-
versally present.’’ In addition, he testified that the staff
at Whiting would carefully monitor the defendant and
any side effects from his medications that could inter-
fere with his ability to present a defense at trial and
would report their observations to the court.
Sicilia testified at the October 26, 2015 hearing that
she had met several times with the defendant, and also
with Cotterell and others who provided care to the
defendant at Whiting. Sicilia’s observations of the defen-
dant were consistent with Cotterell’s diagnosis. Sicilia
testified that, in her opinion, it would be in the defen-
dant’s best interest to be treated with antipsychotic
medications, both for purposes of restoring him to com-
petency to stand trial and for his general mental health.
Specifically, she believed that the defendant’s ‘‘delu-
sions affect how he’s functioning’’ and that the medica-
tions would ‘‘[decrease] the delusions to the point
where he could ignore some of [them] . . . go about
his daily living . . . [and] function at a higher level.’’
When she suggested this course of treatment to the
defendant, however, he adamantly refused, stating that
he did not need medication and that he should not be
at Whiting. In Sicilia’s professional opinion, there were
no other treatments that would be less intrusive and
that could restore the defendant to competency.
After the October 26, 2015 hearing, the state filed a
motion, along with a supporting memorandum of law,
requesting that the trial court order the administration
of medication to the defendant, and the defendant filed
a memorandum of law in opposition to forced medica-
tion. The trial court heard arguments on the issue on
November 18, 2015, and, at the conclusion of the hear-
ing, found that the state had proven all of the elements
of the test set forth in Sell v. United States, supra, 539
U.S. 179–81, for establishing the constitutionality of an
order of involuntary medication by clear and convincing
evidence.6 Accordingly, the court granted the state’s
motion for forced medication. Thereafter, the trial court
supplemented its findings with a memorandum of deci-
sion in which it credited Cotterell’s testimony that the
recommended medications ‘‘are effective in restoring
patients to competency from the mid-50 percent range
up to 70 percent.’’ The court concluded that this rate
of effectiveness constituted a substantial likelihood that
the defendant would be restored to competency for
purposes of Sell. The court also concluded that the
medications are ‘‘substantially unlikely to have side
[e]ffects that will interfere significantly with the defen-
dant’s ability to assist counsel in conducting a trial
defense’’ and that there are no less intrusive treatments
that would be effective. Finally, the court credited Sici-
lia’s testimony that the administration of the medica-
tions would be medically appropriate and in the defen-
dant’s best medical interest.
This appeal followed. The defendant claims that the
trial court incorrectly determined that the state proved
by clear and convincing evidence that there is ‘‘a need
for [forced medication] sufficiently important to over-
come the [defendant’s] protected interest in refusing it
. . . .’’ Sell v. United States, supra, 539 U.S. 183. Specifi-
cally, the defendant contends that the state failed to
prove that it is substantially likely that forced medica-
tion will restore him to competency because a 55 to 70
percent probability of restoration to competency does
not constitute a substantial likelihood for purposes of
Sell, and, even if it did, the state failed to prove that
there was a 55 to 70 percent probability that forced
medication would restore the defendant to competency.
In addition, the defendant challenges the trial court’s
findings that (1) it is substantially unlikely that the side
effects of forced medication will deprive the defendant
of his right to a fair trial, (2) there is no less restrictive
alternative to forced medication, and (3) the involuntary
administration of medication is in the defendant’s best
medical interest. We conclude that the trial court
applied the proper standard and that its findings were
supported by clear and convincing evidence.
The following legal principles guide our analysis of
the defendant’s claims. ‘‘It is well established that [a]n
individual has a constitutionally protected liberty inter-
est in avoiding involuntary administration of antipsy-
chotic drugs—an interest that only an essential or over-
riding state interest might overcome. [Id., 178–79] (quot-
ing Riggins v. Nevada, 504 U.S. 127, 134, 135, 112 S.
Ct. 1810, 118 L. Ed. 2d 479 [1992]). This is because [t]he
forcible injection of medication into a nonconsenting
person’s body represents a substantial interference with
that person’s liberty. Washington v. Harper, 494 U.S.
210, 229, 110 S. Ct. 1028, 108 L. Ed. 2d 178 (1990).
Indeed, it has been observed that when the purpose or
effect of forced drugging is to alter the will and the mind
of the subject, it constitutes a deprivation of liberty in
the most literal and fundamental sense. [Id., 237–38]
(Stevens, J., dissenting).
‘‘At the same time, the government has a significant
interest in bringing a person accused of a serious crime
to trial. See Sell [v. United States, supra, 539 U.S. 180].
The power to bring an accused to trial is fundamental
to a scheme of ordered liberty and prerequisite to social
justice and peace. Illinois v. Allen, 397 U.S. 337, 347,
90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970) (Brennan, J.,
concurring). It surely is not an overstatement to observe
that the government’s ability to enforce the criminal
laws in accordance with due process is the foundation
on which social order rests and from which individual
liberties emanate. Thus, when an individual commits
a crime, he forfeits his liberty interests to the extent
necessary for the government to bring him to trial. Rec-
ognizing this important governmental interest, the
[United States] Supreme Court has held that in some
circumstances, forced medication to render a defendant
competent to stand trial for a crime that [that person]
is charged with committing may be constitutionally per-
missible, even though the circumstances in which it is
appropriate may be rare. See Sell [v. United States,
supra, 180]. As the [United States Supreme] Court stated
. . . [in Sell]:
‘‘[T]he [c]onstitution permits the [g]overnment invol-
untarily to administer antipsychotic drugs to a mentally
ill defendant facing serious criminal charges in order
to render that defendant competent to stand trial, but
only if the treatment is medically appropriate, is sub-
stantially unlikely to have side effects that may under-
mine the fairness of the trial, and, taking account of
less intrusive alternatives, is necessary significantly to
further important governmental trial-related interests.
[Id., 179].
‘‘Articulating a standard for determining the circum-
stances in which the government may obtain a court
order to medicate involuntarily a defendant to render
him competent to stand trial, the [United States]
Supreme Court has focused on the competing interests
of the defendant and the government. . . . United
States v. Bush, 585 F.3d 806, 813 (4th Cir. 2009). This
standard requires the government to satisfy a four part
test. First, it must show that important governmental
interests are at stake. . . . An important governmental
interest exists when the defendant is accused of a seri-
ous crime and [s]pecial circumstances do not under-
mine the government’s interest in trying him for that
crime. . . . Second, it must show that involuntary med-
ication will significantly further the state’s interest. . . .
In other words, it must show that the involuntary admin-
istration of the medication is both (a) substantially
likely to render the defendant competent to stand trial
and (b) substantially unlikely to have side effects that
will interfere significantly with the defendant’s ability
to assist counsel in conducting a trial defense, thereby
rendering the trial unfair. . . . Third, it must show that
involuntary medication is necessary to further its inter-
ests by showing that any alternative, less intrusive treat-
ments are unlikely to achieve substantially the same
result. . . . Fourth, it must show that the administra-
tion of the drugs is medically appropriate, or that it is
in the defendant’s best medical interest in light of his
medical condition.7 . . . United States v. Evans, 404
F.3d 227, 235 (4th Cir. 2005), quoting Sell v. United
States, supra, 539 U.S. 180–81.’’ (Footnote added; inter-
nal quotation marks omitted.) State v. Seekins, 299
Conn. 141, 154–56, 8 A.3d 491 (2010).
The court in Sell did not prescribe the standard of
appellate review of the trial court’s conclusions with
respect to the four factors for determining the constitu-
tionality of forced medication. Most federal circuit
courts of appeals have concluded, however, that the
first prong, regarding the government’s interest in
restoring the defendant to competency, is a question
of law subject to de novo review and the remaining
prongs are factual questions subject to review for clear
error. See United States v. Dillon, 738 F.3d 284, 291
(D.C. Cir. 2013) (citing cases). Although we generally
agree with this approach, we disagree that the second
prong presents a pure question of fact. Rather, we con-
clude that, for purposes of determining whether ‘‘the
involuntary administration of the medication is both
(a) substantially likely to render the defendant compe-
tent to stand trial and (b) substantially unlikely to have
side effects that will interfere significantly with the
defendant’s ability to assist counsel in conducting a
trial defense’’; (internal quotation marks omitted) State
v. Seekins, supra, 299 Conn. 156; the meanings of the
terms ‘‘substantially likely’’ and ‘‘substantially unlikely’’
are questions of law subject to de novo review. This is
because, as we discuss subsequently in this opinion,
these terms have no fixed, mathematical meanings that
can be readily understood and applied by an expert or
fact witness; rather, their meanings vary depending on
the legal interests involved, which are questions for
the court. Whether the state has satisfied those legal
standards, however, is a question of fact. We review
the trial court’s factual findings for clear error, which
occurs ‘‘when there is no evidence in the record to
support [the court’s finding of fact], or when, although
there is evidence to support the factual finding, the
reviewing court, upon consideration of the entire
record, is left with a definite and firm conviction that
a mistake has been committed.’’ (Internal quotation
marks omitted.) Lapointe v. Commissioner of Correc-
tion, 316 Conn. 225, 264 n.35, 112 A.3d 1 (2015).
The court in Sell also did not prescribe the govern-
ment’s standard of proof. Most federal courts that have
considered the issue, however, have concluded that the
Sell factors must be proven by clear and convincing
evidence. See, e.g., United States v. Diaz, 630 F.3d 1314,
1331 (11th Cir.) (‘‘[o]ther circuit courts that have consid-
ered this issue uniformly concluded that in Sell cases
the government bears the burden of proof on factual
questions by clear and convincing evidence’’), cert.
denied, U.S. , 132 S. Ct. 128, 181 L. Ed. 2d 49(2011). In light of the nature and importance of the right
at issue, we agree with and adopt that standard. Cf.
State v. Garcia, 233 Conn. 44, 86, 658 A.2d 947 (1995)
(before United States Supreme Court’s decision in Sell,
state was required to demonstrate factors supporting
order of forced medication by clear and convincing
evidence), overruled in part on other grounds sub
silentio by Sell v. United States, 539 U.S. 166, 123 S. Ct.
2174, 156 L. Ed. 2d 197 (2003).
I
With these principles in mind, we turn to the defen-
dant’s claim that the trial court incorrectly determined
that forced medication ‘‘is substantially likely to render
[him] competent to stand trial.’’ Sell v. United States,
supra, 539 U.S. 181. We disagree.
The defendant contends that, even if credited, Cotte-
rell’s testimony that the recommended medications are
effective in restoring patients to competency from ‘‘the
mid-50 percent range up to [the] 70 percent’’ range does
not constitute clear and convincing evidence that there
is a substantial likelihood that the medications will
restore him to competency. In support of this con-
tention, the defendant relies on cases holding that a
success rate of slightly higher than 50 percent does not
constitute a substantial likelihood for purposes of Sell.
See United States v. Arendas, United States District
Court, Docket No. 1:10-CR-123 (TS) (D. Utah May 6,
2013) (‘‘a roughly 60 [percent] success rate’’ does not
constitute substantial likelihood for purposes of Sell);
United States v. Rivera-Morales, 365 F. Supp. 2d 1139,
1141 (S.D. Cal.) (‘‘[a]lthough the court declines to deter-
mine the exact percentage of success that equates with
a substantial likelihood that a defendant’s competency
is restored, it is clear that a chance of success that is
simply more than a 50 [percent] chance of success does
not suffice to meet this standard’’), aff’d, 160 Fed. Appx.
648 (9th Cir. 2005); People v. McDuffie, 144 Cal. App.
4th 880, 887, 50 Cal. Rptr. 3d 794 (2006) (50 to 60 percent
chance of restoration ‘‘is simply not enough to support
the trial court’s finding that these drugs are substantially
likely to render [the defendant] competent to stand
trial’’ [internal quotation marks omitted]); State v.
Barzee, 177 P.3d 48, 61 (Utah 2007) (‘‘[t]o the extent
that [a substantial] likelihood can be quantified, it
should reflect a probability of more than [70] percent’’),
cert. denied, 553 U.S. 1056, 128 S. Ct. 2477, 171 L. Ed.
2d 771 (2008); see also United States v. Valenzuela-
Puentes, 479 F.3d 1220, 1228 (10th Cir. 2007) (‘‘[Under
Sell] the government establishes a fact by clear and
convincing evidence only if the evidence place[s] in the
ultimate [fact finder] an abiding conviction that the
truth of its factual contentions are highly probable. . . .
This would be true, of course, only if the material it
offered instantly tilted the evidentiary scales in the affir-
mative when weighed against the evidence . . .
offered in opposition.’’ [Citation omitted; internal quota-
tion marks omitted.]).8
For the following reasons, we do not agree with these
cases and instead conclude that a substantial likelihood
that the defendant will be restored to competency exists
when the state establishes that it is more likely than
not that forced medication will be effective. First, most
of the cases on which the defendant relies do not engage
in any analysis of the meaning of the term ‘‘substantially
likely’’ but merely state conclusorily that a 50 percent
probability does not satisfy that standard. See United
States v. Decoteau, 904 F. Supp. 2d 235, 241 (E.D.N.Y.
2012) (‘‘[n]o controlling case law defines substantially
likely with precision’’ [internal quotation marks omit-
ted]). In the two cases that do engage in some analysis,
the courts focused not on the meaning of ‘‘substantially
likely’’ but on the meaning of ‘‘clear and convincing
evidence.’’ United States v. Valenzuela-Puentes, supra,479 F.3d 1228 (‘‘the government establishes a fact by
clear and convincing evidence only if the evidence
place[s] in the ultimate [fact finder] an abiding convic-
tion that the truth of its factual contentions are highly
probable’’ [internal quotation marks omitted]); see also
United States v. Arendas, supra, United States District
Court, Docket No. 1:10-CR-123 (TS) (citing Valenzuela-
Puentes for proposition that substantial likelihood fos-
ters ‘‘an abiding conviction [that it is] highly probable’’
[internal quotation marks omitted]). For purposes of
making this predictive judgment, however, we believe
that the clear and convincing evidence standard per-
tains to the confidence level of the fact finder, not the
specific degree of probability that the state must estab-
lish. See Fish v. Fish, 285 Conn. 24, 69, 939 A.2d 1040(2008) (‘‘[t]he function of a standard of proof, as that
concept is embodied in the [d]ue [p]rocess [c]lause and
in the realm of [fact-finding], is to instruct the [fact
finder] concerning the degree of confidence our society
thinks he should have in the correctness of factual
conclusions for a particular type of adjudication’’ [inter-
nal quotation marks omitted]); see also id., 134 (Katz,
J., concurring) (‘‘[Clear and convincing evidence] elimi-
nates any serious or substantial doubt concerning the
correctness of the conclusion to be drawn from the
evidence . . . . It should produce in the [fact finder’s]
mind a firm belief or conviction regarding the truth
of the allegations sought to be established.’’ [Internal
quotation marks omitted.]). We note, for example, that
§ 54-56d (k) (2) provides in relevant part that ‘‘the court
may order the involuntary medication of the defendant
if the court finds by clear and convincing evidence
that: (A) [t]o a reasonable degree of medical certainty,
involuntary medication of the defendant will render the
defendant competent to stand trial . . . .’’ A reasonable
degree of medical certainty means that restoration to
competency is more likely than not. See Struckman v.
Burns, 205 Conn. 542, 554–55, 534 A.2d 888 (1987).
Thus, § 54-56d (k) (2) requires the state to prove by
clear and convincing evidence that it is more likely than
not that the defendant will be restored to competency.
Second, contrary to the implicit suggestion of the
cases holding without analysis that a slightly greater
than 50 percent probability is not a substantial likeli-
hood for purposes of Sell, the term ‘‘substantially likely’’
has no objective, mathematical meaning. Rather, its
meaning depends on the context in which it is used.
Compare Southern Utah Wilderness Alliance v. Thomp-
son, 811 F. Supp. 635, 641 (D. Utah 1993) (for purposes
of ruling on request for injunction, ‘‘whether [the]
[p]laintiffs have a substantial likelihood of success is
judged by whether [they] have a reasonable probability
of success’’ [internal quotation marks omitted]), with
Clinton County R-III School District v. C.J.K., 896 F.
Supp. 948, 950 (W.D. Mo. 1995) (for purposes of statute
requiring public schools to keep child in educational
setting last agreed to by school and parents unless
placement is substantially likely to result in injury to
child or others, ‘‘5 [percent] danger of material personal
injury or some appreciable danger of serious personal
injury’’ constitutes ‘‘substantial likelihood’’ [emphasis
in original]).
Third, there is no indication that the court in Sell
intended to change the standards that it previously had
enunciated for determining whether an individual may
be forcibly medicated to restore competency to stand
trial. Rather, the court in Sell expressly incorporated
the standards set forth in its previous decisions in Wash-
ington v. Harper, supra, 494 U.S. 210,9 and Riggins v.
Nevada, supra, 504 U.S. 127.10 See Sell v. United States,
supra, 539 U.S. 178 (Harper and Riggins ‘‘set forth the
framework for determining the legal answer’’ in Sell);
id., 180 (standard set forth in Sell was ‘‘fairly implie[d]’’
by Harper and Riggins). This court previously has held
that, under Harper and Riggins, the state must demon-
strate, ‘‘to a reasonable degree of medical certainty,
[that] involuntary medication of the defendant will ren-
der him competent to stand trial . . . .’’ (Footnotes
omitted.) State v. Garcia, supra, 233 Conn. 84–85; see
also United States v. Weston, 134 F. Supp. 2d 115, 132
(D.D.C.) (applying Harper and Riggins and concluding
that, ‘‘[a]lthough . . . it is not certain that the medica-
tion will restore [the defendant’s] competency, the
[c]ourt credits the . . . testimony of the mental health
experts that this outcome is likely’’), aff’d, 255 F.3d 873(D.C. Cir.), cert. denied, 534 U.S. 1067, 122 S. Ct. 670,
151 L. Ed. 2d 583 (2001);11 Woodland v. Angus, 820 F.
Supp. 1497, 1511 (D. Utah 1993) (under Harper and
Riggins, ‘‘the court must consider whether to a reason-
able degree of medical certainty the treatment would
render the [defendant] competent’’); cf. United States
v. Sanchez-Hurtado, 90 F. Supp. 2d 1049, 1055 (S.D.
Cal. 1999) (under Riggins, ‘‘the government must show
that there is a sound medical basis for treatment with
antipsychotic medication’’ [internal quotation marks
omitted]); Khiem v. United States, 612 A.2d 160, 165–66
(D.C. 1992) (under Riggins, ‘‘[t]he government cannot
intrude [on a defendant’s] bodily integrity without a
showing of overriding justification and medical appro-
priateness’’), cert. denied, 507 U.S. 924, 113 S. Ct. 1293,
122 L. Ed. 2d 684 (1993).
To be sure, the court in Sell stated that the instances
in which the constitution permits forced medication to
restore a defendant to competency ‘‘may be rare.’’ Sell
v. United States, supra, 539 U.S. 180. As one commenta-
tor has noted, however, ‘‘[t]he part of the Sell test most
likely to cause courts to deny the government’s petition
to administer involuntary medications is the require-
ment that ‘important governmental interests [must be]
at stake.’ ’’12 (Emphasis in original.) D. Klein, ‘‘Curiouser
and Curiouser: Involuntary Medications and Incompe-
tent Criminal Defendants After Sell v. United States,’’
13 Wm. & Mary Bill Rts. J. 897, 908 (2005). In addition
to this requirement, the court also must find that forced
medication is medically appropriate and in the defen-
dant’s best medical interest, and that no less intrusive
treatments will achieve the same result. Sell v. United
States, supra, 181. These standards alone will signifi-
cantly narrow the class of defendants who are poten-
tially subject to forced medication to restore compe-
tency to stand trial. We see no reason why the United
States Supreme Court would have intended that there
must be a substantial further narrowing of that class
by requiring proof of a very high probability that forced
medication will restore competency. See D. Klein,
supra, 910 (requirement that government establish sub-
stantial likelihood that forced medication will render
defendant competent to stand trial ‘‘is unlikely to limit
the instances in which trial courts allow involuntary
medications’’). Put another way, if the government can
establish that it has an important interest in bringing
the defendant to trial, that it will not be able to do so
unless the defendant is medicated and that medication
is medically appropriate and in the defendant’s best
medical interest, we can see no reason why the govern-
ment should be further required to establish, not just
that it is more likely than not that forced medication
will restore the defendant to competency, but that it is
highly likely that forced medication will have that
effect.
Accordingly, we conclude that, for purposes of
determining whether forced medication is substantially
likely to render a defendant competent to stand trial
under Sell, ‘‘substantially likely’’ means more likely than
not, or a greater than 50 percent probability. In our
view, in light of the other three prongs of Sell that,
in and of themselves, provide significant protection to
defendants who are potentially subject to orders of
forced medication, a more stringent interpretation of
the phrase ‘‘substantially likely’’ in Sell v. United States,
supra, 539 U.S. 181, would place an undue burden on
the state.
In the present case, Cotterell’s testimony that the
likelihood that the recommended medications will be
effective in restoring patients to competency is at least
in the mid-50 percent range, and could be as high as
70 percent, comfortably met this standard. Indeed, Cot-
terell testified that the likelihood of restoration could
well exceed this estimate with longer term treatment.
We therefore conclude that the trial court correctly
determined that there was clear and convincing evi-
dence that there was a substantial likelihood that the
medications will restore the defendant to competency.
The defendant contends, however, that, even if a
greater than 50 percent success rate constitutes a sub-
stantial likelihood for purposes of Sell, Cotterell’s testi-
mony was not sufficient to support the trial court’s
finding that it was substantially likely that he would be
restored to competency because Cotterell did not testify
regarding the success rate for patients with the defen-
dant’s specific psychiatric diagnosis and characteris-
tics, including his current age, his age at the onset of
his symptoms, and the length of time that he has experi-
enced the symptoms but, rather, testified only about the
general effectiveness of the recommended medications.
We are not persuaded by this argument. Cotterell testi-
fied that he personally had met with and evaluated
the defendant, and that his opinion was based on his
‘‘clinical experience dealing with these kinds of patients
and these kinds of medication.’’ (Emphasis added.) It is
implicit in this testimony that, in Cotterell’s professional
judgment, there was nothing about the defendant’s par-
ticular condition or circumstances that would signifi-
cantly reduce the effectiveness of the medications.
To the extent that Cotterell relied on published
research indicating a ‘‘greater than 50 percent chance
. . . that [those medications will result in] a substantial
improvement in the [patient’s] clinical state,’’ medical
experts and courts simply have no choice but to rely
on generalized studies when making such predictive
judgments. See, e.g., D. Klein, supra, 13 Wm. & Mary
Bill Rts. J. 910 (‘‘[g]iven the current state of knowledge
about the treatment of mental illnesses, courts pres-
ently have no choice but to base their decisions on
generalized, rather than individualized, information
about the likelihood that involuntary medications will
render defendants competent to stand trial or infringe
their right to a fair trial’’); see also United States v.
Watson, 793 F.3d 416, 441 (4th Cir. 2015) (Traxler, C.
J., dissenting) (‘‘if [general] studies do not bear on [the
defendant’s] particular medical condition, it seems
unlikely that any academic literature short of a paper
devoted entirely to the treatment of the actual defen-
dant in question would meet the majority’s unexplained
standard for ‘bearing’ on an incompetent defendant’s
particular medical condition’’). Accordingly, in the
absence of evidence demonstrating why a general study
has no application to the particular defendant, medical
experts and courts properly may rely on such studies.
See, e.g., State v. Barzee, supra, 177 P.3d 78 (when
state’s experts relied on their clinical experience and
firsthand knowledge of defendant to support conclu-
sion that there was substantial likelihood that forced
medication would restore defendant to competency,
their reliance on general studies regarding success rates
of medications to further support their conclusion was
proper). Although the defendant cites numerous cases
that have criticized the use of general success rates and
anecdotal studies for purposes of a Sell analysis,13 he
has not referred to any evidence in the present case
that would support a finding that the studies on which
Cotterell relied, which were not identified, were so gen-
eral as to be useless for purposes of predicting the
effectiveness of the recommended medications with
respect to him. He also has not referred to any evidence
that would support a finding that the medications that
Cotterell recommended have a lower success rate for
individuals with the defendant’s specific diagnosis and
characteristics.14 We therefore conclude that the trial
court’s finding that there was a greater than 50 percent
likelihood that forced medication would restore the
defendant to competency was supported by clear and
convincing evidence and was not clearly erroneous.
II
We next address the defendant’s claim that the trial
court’s finding that forced medication was ‘‘substan-
tially unlikely to have side effects that will interfere
significantly with [his] ability to assist counsel in con-
ducting a trial defense, thereby rendering the trial
unfair’’; Sell v. United States, supra, 539 U.S. 181; was
clearly erroneous.15 We also reject this claim.
In support of this prong of Sell, the state presented
evidence that Olanzapine created only ‘‘some risk’’ of
sedation. The evidence also showed that sedation was
a ‘‘[n]otable potential side [effect]’’ of Ziprasidone,
meaning that the side effect was either frequent or
significant, or both, but there was only a low risk of
sedation when used long term. In addition, Cotterell
testified that ‘‘a lot of clients who use these medications
. . . don’t actually experience sedation’’ and that seda-
tion was ‘‘not something that [one] would expect to be
universally present.’’ Cotterell further testified that the
staff at Whiting would carefully monitor the defendant
and any side effects from his medications that could
interfere with his ability to present a defense at trial
and would report their observations to the court.
We conclude that this evidence supports the trial
court’s finding that the recommended medications are
substantially unlikely to produce side effects that will
interfere with the defendant’s ability to conduct a
defense. With respect to Olanzapine, the evidence dem-
onstrated that sedation is not a notable risk of the
medication, that is, that side effect is neither frequent
nor significant. With respect to Ziprasidone, although
the evidence indicated that sedation is a notable risk
of the medication, the evidence also indicated that there
is only a ‘‘low’’ risk of sedation with long-term use.
We therefore agree with the state that the trial court
reasonably could have concluded, on the basis of this
evidence, that, although sedation may be a frequent or
significant short-term side effect of Ziprasidone, that
side effect significantly diminishes over time as the
patient develops a tolerance for the medication. In addi-
tion, because the staff at Whiting will continuously mon-
itor the side effects of the medication and report their
observations to the trial court, the court reasonably
could have concluded that, if the defendant initially
experienced significant sedation, there was no substan-
tial likelihood that the defendant would be brought to
trial before that side effect diminished sufficiently to
allow the defendant to conduct a defense. In our view,
the fact that a defendant is likely to experience a short-
term side effect that could interfere with his right to a
fair trial does not require the court to deny a request
for forcible medication if it is substantially likely that
the side effect will subside sufficiently to allow the
defendant to conduct a defense. This is especially true
when the medication will have no negative effect on
the defendant’s overall health. Accordingly, we reject
the defendant’s claim that the trial court’s finding that it
was substantially unlikely that forced medication would
result in side effects that would interfere with his right
to conduct a defense was not supported by clear and
convincing evidence.
III
We next address the defendant’s claim that the trial
court’s finding that forced medication is necessary
because ‘‘any alternative, less intrusive treatments are
unlikely to achieve substantially the same results’’; Sell
v. United States, supra, 539 U.S. 181; was clearly errone-
ous. We disagree.
In support of this prong of Sell, Cotterell testified
that, despite the ongoing efforts of the staff at Whiting,
the defendant had not made any substantial progress
toward being restored to competency from the time
that he was admitted to Whiting in April, 2015, up to
the October 26, 2015 hearing. Sicilia testified that there
were no treatments other than forced medication that
would be less intrusive and that could still restore the
defendant to competency. We conclude that this testi-
mony constituted clear and convincing evidence in sup-
port of the trial court’s finding that alternative treat-
ments were unlikely to achieve the substantially same
results as forced medication.
In support of his claim to the contrary, the defendant
contends that, during his first stay at Whiting in late
2010 through early 2011, he had been able to develop
an effective therapeutic relationship with his privately
retained therapist and had been restored to competency
through psychotherapy and educational classes. The
defendant presented no evidence during the compe-
tency hearings in 2015, however, to refute the evidence
presented by the state with respect to this prong of Sell
or that would support a finding that similar treatment
would still be effective in restoring the defendant to
competency. Accordingly, we reject this claim.
IV
Finally, we address the defendant’s claim that the
trial court’s finding that forced medication ‘‘is medically
appropriate, i.e., in the patient’s best medical interest
in light of his medical condition’’; (emphasis omitted)
Sell v. United States, supra, 538 U.S. 181; was clearly
erroneous. We disagree.
In support of this prong of Sell, the state presented
Sicilia’s testimony that it would be in the defendant’s
best interest to be treated with antipsychotic medica-
tions, both for purposes of restoring him to competency
to stand trial and for his general mental health. Sicilia
further explained that the defendant’s ‘‘delusions affect
how he’s functioning’’ and that the medications would
‘‘[decrease] the delusions to the point where he could
ignore some of [them] . . . go about his daily living
. . . [and] function at a higher level.’’ We conclude that
this testimony constituted clear and convincing evi-
dence in support of the trial court’s finding that forced
medication would be in the defendant’s best medical
interest.
The defendant contends, however, that the state has
not established that it is in his best medical interest to
medicate him to reduce his delusional symptoms so
that he is competent to stand trial, and then to stop the
medications after trial. Specifically, he contends that
the most likely result of forced medication in the long
run will be to ‘‘reinforce his delusional beliefs that Whit-
ing, along with the courts and his lawyers, is out to get
him.’’ As with his other claims, however, the defendant
presented no evidence at the competency hearings that
would support this claim. Moreover, when the sole pur-
pose of ordering the administration of medication is to
restore a defendant to competency to stand trial, there
is always a possibility that the beneficial effects of the
medication will last only as long as the trial because
the sole basis for the order will disappear when the
trial concludes. If that possibility were enough to bar
an order of forced medication, it would be barred in
every case. Accordingly, we reject this claim.
V
In summary, we conclude that the trial court correctly
determined that it is substantially likely that forced
medication will restore the defendant’s competency to
stand trial on the basis of Cotterell’s testimony that the
probability that the recommended medications will be
effective is greater than 50 percent. We further conclude
that the trial court’s findings that it is substantially
unlikely that the defendant will experience side effects
that will adversely affect his ability to conduct a
defense, that there are no less intrusive treatments that
will achieve substantially the same effect, and that
forced medication is in the defendant’s best medical
interest were supported by clear and convincing evi-
dence. Accordingly, we conclude that the trial court
correctly determined that the defendant constitution-
ally may be subject to forcible medication to restore
his competency to stand trial under the standard set
forth in Sell.
The decision of the trial court is affirmed.
In this opinion the other justices concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eve-
leigh, McDonald, Espinosa and Robinson. Although Chief Justice Rogers
was not present at oral argument, she has read the briefs and appendices,
and has listened to a recording of oral argument prior to participating in
this decision.
1
This court concluded in State v. Garcia, 233 Conn. 44, 658 A.2d 947(1995), overruled in part on other grounds sub silentio by Sell v. United
States, 539 U.S. 166, 123 S. Ct. 2174, 156 L. Ed. 2d 197 (2003), that an order
of forcible medication is an appealable final judgment under the second
prong of State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). See State
v. Garcia, supra, 66 (under Curcio, ‘‘ ‘[f]or an interlocutory order to be an
appealable final judgment it must threaten the preservation of a right that
the defendant already holds,’ ’’ and defendant had vested ‘‘right to be free
from involuntary medication’’); see also Sell v. United States, supra, 177
(order of forcible medication is ‘‘appealable ‘collateral order’ ’’ under federal
law). The defendant’s appeal from the trial court’s decision was transferred
to this court pursuant to General Statutes § 51-199 (c) and Practice Book
§ 65-1. Thereafter, this court granted the state’s motion to expedite the
appeal.
2
Hereinafter, all references in this opinion to the trial court are to the
court, O’Keefe, J.
3
Cotterell testified that, if the trial court did not order the administration
of medication, Whiting would continue its current course of treatment for
the defendant, which included interviewing him, and offering him classes
and feedback about his condition.
4
In addition to this testimony, at the September 14, 2015 hearing, the
state entered into evidence Cotterell’s written report in which he stated that
the defendant ‘‘will not attain competency within the remainder of the
period covered by the placement order absent administration of psychiatric
medication for which he is unwilling or unable to provide consent . . . .’’
5
Cotterell testified that orthostatic hypotension is a condition in which
a person’s blood pressure drops as the result of a change in body position,
such as standing up. The drop in blood pressure can cause momentary
confusion or weakness.
6
See Sell v. United States, supra, 539 U.S. 179 (‘‘the [federal] [c]onstitution
permits the [g]overnment involuntarily to administer antipsychotic drugs to
a mentally ill defendant facing serious criminal charges in order to render
that defendant competent to stand trial, but only if the treatment is medically
appropriate, is substantially unlikely to have side effects that may undermine
the fairness of the trial, and, taking account of less intrusive alternatives,
is necessary significantly to further important governmental trial-related
interests’’); see also id., 181 (to find that involuntary medication will signifi-
cantly further state interests, court ‘‘must find that [the] administration of
the drugs is substantially likely to render the defendant competent to stand
trial’’ and ‘‘is substantially unlikely to have side effects that will interfere
significantly with the defendant’s ability to assist counsel in conducting a
trial defense’’); id. (to find that involuntary medication is necessary to further
state interests, court ‘‘must find that any alternative, less intrusive treatments
are unlikely to achieve substantially the same results’’).
7
We note that § 54-56d (k) (2), which was enacted before the United
States Supreme Court decided Sell, also sets forth certain requirements that
must be met before a defendant may be forcibly medicated. Section 54-56d
(k) (2) provides in relevant part: ‘‘[T]he court may order the involuntary
medication of the defendant if the court finds by clear and convincing
evidence that: (A) To a reasonable degree of medical certainty, involuntary
medication of the defendant will render the defendant competent to stand
trial, (B) an adjudication of guilt or innocence cannot be had using less
intrusive means, (C) the proposed treatment plan is narrowly tailored to
minimize intrusion on the defendant’s liberty and privacy interests, (D) the
proposed drug regimen will not cause an unnecessary risk to the defendant’s
health, and (E) the seriousness of the alleged crime is such that the criminal
law enforcement interest of the state in fairly and accurately determining
the defendant’s guilt or innocence overrides the defendant’s interest in self-
determination.’’ The defendant in the present case makes no claim that § 54-
56d (k) (2) imposes a higher burden on the state than the standard set forth
in Sell. Accordingly, if we determine that the trial court correctly concluded
that the state established the relevant Sell factors by clear and convincing
evidence, the corresponding factors of § 54-56d (k) (2) necessarily will
be satisfied.
8
Several courts have considered a likelihood of 70 percent or greater to
be a substantial likelihood for purposes of Sell. See United States v. Dillon,
supra, 738 F.3d 297 (73.3 percent likelihood of restoration to competency
is substantial likelihood); United States v. Diaz, supra, 630 F.3d 1332 (75
to 87 percent likelihood is substantial likelihood); United States v. Fazio,
599 F.3d 835, 840–41 (8th Cir. 2010) (75 to 87 percent likelihood is substantial
likelihood), cert. denied, 562 U.S. 1141, 131 S. Ct. 901, 178 L. Ed. 2d 759(2011); United States v. Green, 532 F.3d 538, 553 (6th Cir. 2008) (more than
90 percent likelihood is substantial likelihood), cert. denied, 556 U.S. 1270,
129 S. Ct. 2735, 174 L. Ed. 2d 250 (2009); United States v. Bradley, 417 F.3d
1107, 1115 (10th Cir. 2005) (more than 80 percent likelihood is substantial
likelihood); United States v. Gomes, 387 F.3d 157, 161–62 (2d Cir. 2004) (70
percent likelihood is substantial likelihood), cert. denied, 543 U.S. 1128, 125
S. Ct. 1094, 160 L. Ed. 2d 1081 (2005). We note, however, that these courts
did not conclude that a 70 percent likelihood is the minimum probability
that could constitute a substantial likelihood. But see State v. Barzee, supra,
177 P.3d 61 (‘‘[T]he substantially likely standard requires that the chance
for restoration to competency be great. To the extent that such a likelihood
can be quantified, it should reflect a probability of more than [70] percent.’’).
9
The court in Harper considered the issue of whether forcible medication
for the purposes of reducing a prison inmate’s dangerousness to himself or
others was consistent with constitutional due process principles. Sell v.
United States, supra, 539 U.S. 178; see Washington v. Harper, supra, 494
U.S. 213–14, 221–23.
10
The court in Riggins considered the circumstances under which it might
be constitutionally permissible to forcibly medicate a defendant for the
purpose of rendering him competent to stand trial. Sell v. United States,
supra, 539 U.S. 178–79; see Riggins v. Nevada, supra, 504 U.S. 134–38.
11
In United States v. Weston, 255 F.3d 873 (D.C. Cir.), cert. denied, 534
U.S. 1067, 122 S. Ct. 670, 151 L. Ed. 2d 583 (2001), the District of Columbia
Circuit Court of Appeals affirmed the District Court’s judgment; id., 887;
concluding that the District Court’s determination that restoration to compe-
tency was likely was supported by evidence demonstrating that the proposed
antipsychotic medication mitigated symptoms for at least 70 percent of
patients. Id., 883. Like most of the courts that have concluded that a 70
percent chance of restoration to competency constitutes a substantial likeli-
hood under Sell; see footnote 8 of this opinion; the District of Columbia
Circuit Court of Appeals did not hold in Weston that this rate of success
was the minimum rate that would satisfy the requirements of Harper and
Riggins. Rather, it is implicit in Weston that Harper and Riggins are satisfied
if restoration to competency is likely.
12
The defendant in the present case does not dispute that, for purposes
of Sell, the state has an important interest in bringing to trial defendants
who, like him, have been charged with murder.
13
See, e.g., United States v. Watson, supra, 793 F.3d 425 (‘‘It is critical
that in evaluating the government’s case for forcible medication under Sell,
courts engage in the proper inquiry: not whether a proposed treatment plan
is likely to work in general, but whether it is likely to work as applied to
a particular defendant. Permitting the government to meet its burden through
generalized evidence alone would effectively allow it to prevail in every
case involving the same condition or course of treatment. . . . Because we
are obligated to ensure that a given case is sufficiently exceptional to warrant
the extraordinary measure of forcible medication, we cannot permit such
deference . . . .’’ [Citation omitted; internal quotation marks omitted.]);
United States v. Evans, supra, 404 F.3d 241 (‘‘Instead of analyzing [the
defendant] as an individual, the report simply sets up syllogisms to explain its
conclusions: [1] atypical antipsychotic medications are generally effective,
produce few side effects, and are medically appropriate, [2] [the defendant]
will be given atypical antipsychotic medications, [3] therefore, atypical anti-
psychotic medication will be effective, produce few side effects, and be
medically appropriate for [the defendant]. To hold that this type of analysis
satisfies Sell’s second and fourth factors would be to find the government
necessarily meets its burden in every case it wishes to use atypical antipsy-
chotic medication.’’).
14
Although the defendant has cited a number of articles and professional
manuals that, according to him, support this claim, these materials were
not presented as evidence in the proceedings before the trial court, and this
court is not a fact-finding tribunal.
15
We note that this prong of Sell requires the courts to focus exclusively
on side effects of the medication that will affect the fairness of the trial.
Whether the medication will have side effects that negatively affect the
defendant’s health is considered under the prong requiring courts to deter-
mine whether forced medication is in the patient’s best medical interest.
See Sell v. United States, supra, 539 U.S. 181 (in determining whether forced
medication is in defendant’s best medical interest, courts must take into
account that ‘‘[d]ifferent kinds of antipsychotic drugs may produce different
side effects and enjoy different levels of success’’). In the present case, the
defendant contends that the side effects of the medications that Cotterell
recommended ‘‘may be permanent or life threatening.’’ Because the defen-
dant has referred to no evidence in the present case that would support
such a contention, we decline to address this claim.